State v. Manhattan Silver Mining Co.

4 Nev. 318 | Nev. | 1868

Lead Opinion

By

Beatty, C. J.

^ This was an action brought to recover certain taxes alleged to be'dueAhe State and the County of Lander, from the defendant, ofi the -product of mines for the first quarter of the year 1867. On the trial of the cause, plaintiff offered to introduce in evidence the delinquent list of the taxes on proceeds of mines of Lander County for the first quarter of 1867. Defendant objected to the introduction of this list on various grounds ; among others, that it showed on its face that it” had been altered, erased, etc., in many respects, and was not, therefore, admissible in evidence. This objection w'as reserved for argument. The assessment roll of the taxes on the proceeds of the mines for the same period was also offered, and the same objections urged to its admission.

It appeared in evidence that one Allen A. Curtis, agent of defendant, had made to the Assessor the following report: “ Statement of the amount of ores obtained from the mines of the Manhattan S. M. Co., of Nevada, and the net product of the same for the quarter ending March 31st, 1867.

“North Star Mine, 374i tons, average net product per ton ($136.37) one hundred thirty-six thirty-seven one hundredth dollars.”

This report is accompanied with an affidavit in the necessary and prescribed form. The Assessor in making his assessment or entry on the assessment roll from this report, made several mistakes or blunders. The most material one was, that he made- the entries so as to deduct forty dollars per ton from the reported yield of the ore, although that deduction had already been made by the agent of the mining company. So that in reality, $80 per ton was deducted from the gross yield of each ton of ore, thus diminishing the apparent amount due the State to the extent of nearly $400.

After the assessment roll had been sworn to as the law requires, and turned over to the Auditor, and by the Auditor again returned to the County Assessor for collection, this error was discovered, and the Assessor, having first asked the advice of the District Attorney, drew his pen across the assessment he had made to the defendant, wrote the word “ error” on the margin of the assessment roll, and on another line made a new assessment to the defendant, in which was attempted to make the assessment conform to the statement made by the agent of defendant. The original assessment, however, remained entirely legible, notwithstanding ure marks drawn upon it. It may be proper to remark. ]|3ri§$tka^ the District Attorney claims that when he advised the alteration, he was under the impression that the assessment roll was still in the hands of the Assessor as such, and had not passed over to the Auditor.

The Court finally, after argument, admitted the delinquent list and assessment roll in evidence, and gave judgment for the plaintiff for the amount of taxes due, as shown by the assessment roll when turned over to the Auditor, but not for the increased amount arising from the correction made therein by the Assessor and ex officio Collector after the roll wras given to him for collection.

The appellant contends the delinquent list and assessment roll should have been rejected as evidence, because of material alterations made in them by the agent or agents of the State, and because the assessment roll offered in evidence was not the same assessment roll sworn to as correct, and turned over by the Assessor to the Auditor, and by him again to the Assessor and Collector. In other words, it was not the same roll because it had been altered, added to and erased after it came into the Auditor’s hands.

Whatever the doctrine may once have been in regard to deeds, (and there was in this respect a wide difference between deeds and instruments not under seal) it is now' well settled that no one can be deprived of the benefit of any deed, instrument, contract or written evidence, merely because the same has in any particular been erased or altered; provided, that erasure or alteration was made without the knowledge or consent of the party wishing to use the same, and it can be ascertained by any legal method of arriving at the knowledge of that fact, how the instrument read before the erasure or alteration.

Neither the District Attorney nor the Assessor was the agent of the State to alter an assessment roll in the hands of the ex oficio Collector. Their acts were wholly unauthorized, and did not in any way, affect the interest of the State or of Lander County; hence, the alteration is as if done by a mere stranger.

The papers were properly admitted in evidence. The objection that the delinquent list is not properly certified by the Auditor is not available in this Court, if, indeed, there is any such defect; for the list itself is not contained in the record, nor any statement showing that there was a want of certificate, or that it was defective in any .respect. The mere pact (and this is all the statement shows) that appellant objected to the list because of its not being “ properly authenticated, in that no certificate is entered therein, or attached thereto,” etc., etc., does not prove the want of certificate. Counsel frequently object to a paper because of some alleged defect which only exists in their imagiiiation.

A lawyer may assign any reason he pleases for objecting to the introduction of a paper. The Court in settling a statement could not say such reason had not been assigned, although it might be convinced it was not founded on any existing facts. If counsel wish to establish a fact on which this Court can act, they must do it by the introduction of evidence, the admission of the opposite counsel, a certificate of the Judge who tried the case, or a positive statement of the circumstances as having in some way been shown on the trial. Had there been a direct allegation in the statement of facts in this case that when the delinquent list was offered, it had (as appeared by inspection) no certificate of the Auditor attached to it, this would have been a sufficient showing oh this point, for if there had been such certificate the respondent could have amended the statement in this particular before the same was settled. But respondent cannot ask the Court below to alter the reasons assigned for a motion or objection by the appellant, although statements not founded in fact may be mixed up with these assignments of grounds for a motion.

As the facts on which this objection are based are not before us, we have not entered into any consideration of the question whether it would have been a valid objection if founded in fact.

The law of 1867 amending the revenue law requires the Board of County Commissioners to levy the annual taxes before the third Monday in April of each year. That Act was not passed until the 2d of April, 1867 ; the third Monday of April of that year came on the 16th of the month. So that the last secular day on which the levy could be made was on Saturday, the 13th. The Board of County Commissioners of Lander County had met for the transaction of business at a time prescribed by law, to wit: Monday, the 1st day of April. That day they adjourned to Saturday, the 6th of April, and again on Saturday, the 6th of April, adjourned to May the 6th. On .Monday, the 8th of April, the persons composing that Board met and entered an order directing a special meeting of the Board to be held on Saturday, the 13th of April, to levy the County and State taxes. This order was advertised from that day until thp 13th in a newspaper, but of course this was less than one week. It is now claimed that the levy of taxes was illegal, for the reason that less than one week’s notice was given of the time of this special meeting of the Commissioners.

In the first place as it regards State taxes, it appears to us the levy of them by the County Commissioners is a perfectly idle ceremony. It is true the Legislature requires it to be done, but affixes no penalty to a failure to perform the duty. The levy is made by the Legislature, and what-good can it do for the County Commissioners to remake that levy, or what harm would it do to omit to make it, we are at a loss to understand. The Constitution has required the Legislature to provide for a uniform rate of taxation throughout the State. When the Legislature has done its duty we feel very certain that the tax could not be defeated, either in any particular county or throughout the State, by the delinquency of any Board of County Commissioners.

In regard to county taxes the case is somewhat different. The Legislature only fixes a maximum beyond which the County Commissioners shall not go. Within these bounds they are supreme and must fix the amount of taxes for county purposes. Probably without the proper action of the Commissioners no county tax could be collected. But have not the County Commissioners acted, and acted properly, in that respect? The law says they shall levy the tax prior to' a certain date, and they did levy it prior to that date. But, says appellant, their action in this respect was a nullity, because the meeting of the Board at which the levy was made was a nullity. They had no authority under the law to meet at that time.

Section 3 of the Act of 1864-5, in relation to the County Commissioners, requires them to meet on the first Mondays of January, April, July, and October of each year, and continue [adjourn] from time to time until all the business before them is disposed of.

Section' 4 provides for calling a special meeting at any time after a final adjournment of a regular meeting. Among other things necessary to make such special meeting regular, the clerk must advertise or post notice of such meeting for at least one week previous to the time of meeting. This Section 4, it will be observed, refers to special meetings to be called after & final adjournment for the term. When this law was passed the Board of Commissioners of Lander County had not adjourned for the term, and therefore Section 4 does not have any application to the case. But it ‘ may be claimed that if the meeting could not be called under Section 4 of the Commissioner’s Act, then there was no law at all under which the Board could meet. We think differently'. This Act was passed on Tuesday, the 2d of April. This was the day after the regular quarterly meeting of the Board of Commissioners in the several counties of the State. These Boards are required to make their assessments before the 15th of April — practically on or before the 13th of the month. In the regular course of travel by stages and express the Act could not reach the more distant counties before, say,-from the 7th to the 10th of the month. There was then no opportunity of advertising for one week before the meeting of the Boards in such counties. Yet they are positively required to meet and make these assessments. We think this is clearly a legislative dispensation with act .of advertising. The Board needed no other authority for its meeting at the time it did meet than the Legislature requirement that it should perform this duty before a certain day. Again, whilst a Board of this kind after final adjournment is powerless to meet or transact any business until the next regular term, unless the meeting is called under some special grant of power, we are by no means satisfied that the same rule exists where there has only been an adjournment for a limited period within the term. We are not satisfied but that in such case the Board has it in its power to set aside or alter the day of adjournment so as to make the next meeting of the Board on a different day.

Another point made by appellant in this case is, that the Board of County Commissioners, acting as a Board of Equalization, bad never equalized the assessment of taxes on mines for the first quarter of 1867, and that those against whom such taxes had been levied had had no opportunity of having the same equalized, because the Board had never been in session from the time the assessment roll was delivered to the Auditor until it was returned to the Assessor or ex officio Collector.. The law does not require the assessment roll to be equalized unless some one complains of injustice to himself in the assessment made by the Assessor. We see no constitutional requirement that the Board of Equalization should act on such roll. There is no reason why an Assessor should not make the assessment for taxes as regular and equal as it can be made by the Board of County Commissioners. In regard to assessments for taxes on mines it is a mere privilege on the part of the tax-payer, of which he may avail himself at any time before the taxes are collected or sued for. The law does not fix or limit the time. It would doubtless be more convenient for all parties to have equalization made, if any is asked, whilst the list is in the hands of the Auditor. But a party is not by law limited to such time. (See laws of 1867, latter part.of Section 4, page 161.) We presume the application might be made within reasonable time. If made before suit is brought it would not probably be held that the petitioner had lost his right to have the assessment equalized by undue laches. In this case there was' no application for any equalization. There is, then, nothing in the point that the assessment roll was not equalized.

It is urged that this tax is unconstitutional because the Legislature is restricted for a period, not yet expired when this Act was passed, to an ad valorem tax of one and one-quarter „per cent, per annum for State purposes, and this tax is for five per cent, per an-num on the proceeds of the mines. We can hardly consider such a proposition as this seriously made. We held in the case of the State of Nevada v. Eastabrook, (3 Nev. 173,) first, that all ad valorem taxes must be of a uniform rate or percentage. Second, that the Constitution subjected the 'proceeds of mines, in lieu of the body of the mines, specially to an ad valorem taxation, and that it meant not a part, but the entire proceeds of such mines. Now if the entire proceeds of the mines for each fiscal year are to pay an ad valorem tax of one and one-quarter per cent., we cannot see how it can possibly “increase the percentage paid, to require this sum to be paid by the owner of the mine in four quarterly installments instead of being paid all at one time. The amount to be paid to the State would not vary by the fraction of a mill whether it were paid in one payment or in four installments. How, then, can it be said that paying it one way would be an annual burden of one and one-quarter per cent, on property, and the other way of five per cent. Let us illustrate. The State levies, we will say, an ad valorem tax of one per cent, on all real estate within its jurisdiction. The levy is made in August, and the law requires the taxpayer to pay what is assessed in four monthly installments, say in September, October, November, and December. A citizen has a house and lot which is worth $1,000. The one per cent, on this property amounts to $10, and this is all he has to pay. If he pays this at’ one time he only pays one per cent, annual tax. But if he pays it in four monthly installments, of $2.50 each, according to the argument in this cáse, he pays an annual ad valorem tax of four per cent. Stated in this way the proposition is simply ridiculous. Between this latter proposition and the one stated by counsel there may be a difference in form, but none in substance.

The last proposition of appellant is, that the law is not retrospective in its terms, and cannot have a retroactive operation. The proceeds of the mines for the first quarter of the year 1867 having been already extracted, and a part of them realized and transported from the State before the law was . passed, it cannot be held to operate on those proceeds. The Constitution, as we have heretofore interpreted it, requires the Legislature to have assessed and collected an annual ad valorem tax, (equal to the annual ad valorem tax on other property) on the entire proceeds of the mines. The law of 1864-5 imposed an ad valorem tax of one and one-quarter per cent, for State purposes on all taxable property in the State, and also allowed the County Commissioners to levy a tax not to exceed one and one-half per cent, for county purposes. This section was amended in 1866, and again in 1867, but the amendments do not in any way alter the burden or amount of taxation. The old law and the new law alike require and authorize the collection of the same amount of taxes. The amendments of 1867 only provided more specific directions for the mode of assessing and collecting these taxes. The Legislature could, not, if it would, exempt any part of the proceeds of the mines for the fiscal year 1867 from taxation, without a palpable violation of the Constitution. In the amendments made to .the revenue law in 1867 it directs, certain things to be done for the purposes of ascertaining the value of the taxable property in the State during that fiscal year. The law, it is true, was passed, or amended, after the commencement of the year, but the whole object of the law was to fix the mode of assessment for that and future years. It could not assess part of the property liable to taxation in 1867 without assessing all. It was clearly and unmistakably the intention to assess all. That intention is sufficiently apparent from the language of the amendments, and must be carried out, even though the Act were to some extent retroactive. But according to our view's, the'Act does not come within the class of Acts properly called retroactive. It was an Act to affect the mode of collecting taxes for the year within which it was passed. It did not provide for the collection of any taxes which would have been payable before the passage of the amendments — it did not provide for the doing of any act' which would otherwise have been done before the amendments were adopted, except the making of an assessment by the Board of County Commissioners, and that assessment it required to be made over under the amendment. It undid nothing; it annulled no former act except the county assessment; it only required that the assessments thereafter to be made should be made in a different manner from what they had heretofore been made. The taxes thereafter to fall due were to. be collected in a somewhat different manner. The mere fact that some .of the property on which these taxes were to be collected had been removed from the State before the passage of the amendments could not give a retroactive character to the Act. The property, whether removed or not removed before the change in the revenue law, was subject to its annual tax. This amended law neither takes away nor impairs any vested right; it creates no new liability or obligation on the tax-payer, and does not conie within the definition of a retroactive law. (See Sedgwick on Statutory and Constitutional Law, 188 et seq.)

Judgment affirmed.

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Concurrence Opinion

Johnson, J., with whom Lewis, J.,

concurred.

I concur in both the reasoning and conclusions contained in the foregoing opinion, respecting the State tax, thus far — that the validity of such tax does'not depend on the action of the Board of Commissioners in making a levy, as the law itself makes the levy. The Board may or may not do it without impairing in the slightest degree the right- to enforce the tax. (The People v. McCreery, 33 Cal. —.) But the county tax stands on a different footing entirely. As to it, the action of the Board is indispensably necessary in fixing the rate and making the levy, and unless these steps are pursued, it is conclusive to my mind that the payment of the county tax cannot be compelled. As to the question whether the Board of County Commissioners of Lander County properly levied the county tax in the case at bar, I also agree with my associates in their conclusions, but upon grounds somewhat different from those stated in the opinion of the Chief Justice. “ An adjournment,” as he holds, a-to a given day in the term, is not the final adjournment contemplated in the-Act;” so that whereas in this case the Board stood adjourned to a future day within the April term, there was no authority to call a meeting at an earlier day within the adjourned period under the statutory provision requiring a published notice for one week. But I cannot permit to pass with approval the other proposition, that this Board, when adjourned to a given day, may revoke such order and convene at an earlier day. I consider that the members of such a Board have no such authority, and its acts, under these circumstances, can have no possible effect. Indeed, it is questionable whether our Courts can, after an adjournment to a given time, set aside the order of adjournment and meet at an earlier day, though we are . aware that this Court has done so repeatedly — a practice inaugurated before I became a member of it, to which I have since tacitly assented, although entertaining grave doubts of its correctness. Howeveh, whether it be the proper practice, leaving the question to be considered at the proper time, I am unwilling to extend the rule any farther, except where the law directly authorizes it.

Assuming therefore that this is the proper view to be taken of the matter, we must look to the supplemental Act of April 2d, 1867, solely, for the authority of the Board to make the levy on the thirteenth of the month, and as the law is general in its terms, it is not a question whether the county be near to or remote from the seat of government; so that it is perhaps not strictly correct to say there was a legislative dispensation with the necessity of advertising notice of the meeting in this case, but to place the proposition on the distinct ground that the supplemental Act of April 2d, 1867, in requiring the Board of Commissioners in the several counties of the State to do certain things, within a specified time, necessarily authorizes them to meet at any time within the limitation, to the end that the duty may he performed, irrespective of former provisions of the law regulating the meetings of such Board. Therefore I conclude that the levy made by such Board on the 13th of April was valid.

The alterations and changes made by the Assessor, in the assessment roll, after he had turned it over to the- Auditor, were wholly unauthorized. Yet this did not vitiate the true assessment as it came to the hands of the Auditor. This could be readily ascertained by an inspection of the roll itself, coupled with the other proofs adduced at the trial. The erasures and changes having been fully explained, in pursuance of Sec. 395 of the Civil Practice Act, the Court properly admitted the roll in evidence.

I agree with the learned counsel for appellant, that in some re-speets the Court below was not sufficiently specific in its findings ; indeed, that a part of the series are conclusions of law rather than findings of fact. But to make this objection available on appeal, application should have been made in the District Court, to correct or amend its findings. Nothing in -the record appears showing that this ivas done. The point of objection cannot be raised for the first time in the appellate Court. (See Act regulating appeals, Sec. 2; Statutes of 1864-5, 394; Whittemore v. Shiverick, 3 Nev. 312; Warner v. Holman, 24 Cal. 228 ; Cook v. De La Guerra et al., Id. 241; Bryan v. Maume et al., 28 Cal. 238; Lyons v. Lembach, 29 Cal. 139.)

Concerning the matter of the equalization of this 'assessment, whether the Board acted or not, does not appear ; and perhaps, in the absence of a contrary showing, the legal presumption would be —as counsel for respondent, on the argument, insists was the fact —that the Board did make such equalization. Yet, if the Board did not do so in this instance, the plaintiff was the only sufferer from such neglect, seeing that the assessment — within the limitation of the law — was based on a valuation of forty dollars per ton less than was shown by the verified statement of the mining superintendent. Two other questions are presented, which I shall briefly notice. These are — 1st, that a quarterly assessment and collection of taxes on the proceeds, of mines is unconstitutional; and 2d, that the Act of April 2d, 1867, is not retrospective in its terms, and cannot have a retroactive operation. The point involved in the first of these inquiries was presented to this Court prior to my becoming a member of it, in the case of The Mayor and Aldermen of the City of Virginia v. The Chollar-Potosi G. & S. M. Co., (3 Nev. 86) in which the principle was upheld by the unanimous opinion of the three Judges, that such a law was constitutional.' The question was again presented since my accession to the Bench, in the recent case of The State v. Kruttschnitt et als., wherein I concurred in the conclusions attained by the Chief Justice, upholding the validity of this feature of the law. It was with extreme reluctance that I came to this view of the question (not because the entire proceeds, less the sum allowed for reducing the ores, should not be assessed and collected, but that such assessment and collection should, as upon other species of property, be annual, and not quarterly). But as the Court, in the case above cited, had ruled upon the question and sustained the law, I did not feel at liberty, on a mere doubtful question, to even suggest the hesitation I felt in concurring with the opinion of my associates. ,.

Also, in respect to the last point — the retroactive operation of the law — my impressions, not amounting to an absolute conviction —are adverse to the views taken of it in the preceding opinion; but these being merely matters of doubt, I am indisposed to disturb the principle, as established by my associates in a former case — that of The State v. Eastabrook (3 Nev. 173).

For the reasons herein giren, I concur in affirming the judgment of the District Court.